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December 5, 2012

Seventh Circuit rejects extending Southern Union to restitution based on (minority) view it is not a criminal penalty

The Seventh Circuit handed down a panel opinion today in US v. Wolfe, No. 11-3281 (7th Cir. 2012) (available here), which concludes with a lengthy discussion of whether Sixth Amendment rights recognized in Apprendi and applied to fines in Southern Union apply to restitution awards.  Here is the heart of the ruling (with most cited removed):

The district court imposed a restitution order totaling $3,028,011.29.  Wolfe challenges this amount on the ground that it was not supported by the jury’s factual findings, a violation of the Sixth Amendment under Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically, he contends that the recent Supreme Court decision in Southern Union Co. v. United States, ___ U.S. ___, 132 S. Ct. 2344 (2012), first, requires us to overturn our longstanding jurisprudence that restitution is not a criminal penalty, and second, mandates that all restitution amounts be supported by the jury’s verdict....

Wolfe argues that his restitution order is similar to the criminal fine in Southern Union because the order is a “lifelong payment burden.”  Yet, the only way Southern Union may affect the outcome of this case is if we first conclude restitution is a criminal penalty. (If so, the issue becomes whether Southern Union’s holding that Apprendi applies to criminal fines should extend to another type of criminal penalty: restitution.)  Reaching such a conclusion, however, would be in direct opposition to this Circuit’s well-established precedent that restitution is not a criminal penalty....

Having examined our sister circuits who have addressed whether restitution is civil or criminal in nature, we find ourselves in the minority.  Only the Eighth and Tenth Circuits, like us, have found restitution to be civil in nature....

But a “compelling reason” is required to overrule our Circuit’s precedent.  Being in the minority is not enough. This is true even if the trend is against us.... Wolfe’s only other arguments as to why we should treat restitution as a criminal penalty are that the Supreme Court referred to restitution as a “criminal punishment” in Pasquantino v. United States, 544 U.S. 349, 365 (2005), the restitution order is a “significant infringement on [his] freedom,” and Apprendi should be “extended broadly.”

We have already rejected the Pasquantino argument, so that argument is unavailing.   Likewise, whether a court judgment infringes upon someone’s life does not make the judgment inherently criminal....  And the degree to which Apprendi is extended
has little value when answering the initial question before us: whether restitution is a criminal penalty.  As we stated, Southern Union and the scope of Apprendi only come into consideration if we first conclude restitution is a criminal penalty. We decline to reach such a conclusion.

Wolfe has not provided us with a compelling reason as to why the holding in Southern Union — or this case in general — should be used as the vehicle to overturn our long-standing Circuit precedent that restitution is not a criminal penalty.  The district court’s restitution order was not required to be supported by the jury’s fact-finding, and therefore, it did not violate Wolfe’s Sixth Amendment rights.

December 5, 2012 at 04:38 PM | Permalink


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